In Jeramiah Brown v. Fat Dough Inc. d/b/a Dominos Pizza, 5:22-cv-761 (BKS/ML), 2024 WL 1345360 (N.D.N.Y. March 29, 2024), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s sex-based hostile work environment claim.
The court summarized the black-letter law, and applied it to the facts, as follows:
Under Title VII, it is illegal “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Under a hostile work environment theory of sexual harassment, a plaintiff may “recover even in the absence of a tangible job action against him.” Perks v. Town of Huntington, 251 F. Supp. 2d 1143, 1155 (E.D.N.Y. 2003). “To establish a hostile work environment under Title VII … a plaintiff must show that ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Littlejohn v. City of New York, 795 F.3d 297, 320–21 (2d Cir. 2015) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). To survive a motion to dismiss, “the plaintiff must ‘plead facts that would tend to show that the complained of conduct: (1) is objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s [protected characteristic].
The Amended Complaint alleges facts allow a plausible inference that Defendant created a working environment that was objectively hostile or abusive because of Plaintiff’s sex and that Plaintiff subjectively perceived it as such. Plaintiff alleges that on October 12, 13, and 14, 2021, and “on [n]umerous [o]ccassions [sic]” during the twenty-day time period that he worked for Domino’s, (October 8–28, 2021), a Domino’s manager, Filkins, asked Plaintiff about his “sex and sexual orientation,” asked him for “explicit sexual favors,” and asked Plaintiff “how [he] performs certain sexual favors.” (Dkt. No. 7, at 6). When Plaintiff “denied to answer … Filkins’ questions, Filkins “bullied … and name called” Plaintiff “[a]ntisocial.” (Id.). Plaintiff alleges that Filkins harassed Plaintiff in other ways during his employment, including by “yelling” at other employees and “scream[ing]” at Plaintiff when Plaintiff’s shift was moved. (See Dkt. No. 7, at 3, 6). Viewed altogether, the alleged actions, occurring “[n]umerous” times over a three-week time span, plausibly suggest that the behavior was pervasive. (See Dkt. No. 7, at 3, 6, 12). See also Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 203 (2d Cir. 2014) (noting that the district court should have considered “both sexually overt and facially sex-neutral incidents” when assessing the plaintiff’s sex-based hostile work environment claim). Additionally, Plaintiff alleges facts that indicate he perceived the treatment as hostile: Plaintiff states that he complained that he was “humiliated” by Filkins’ behavior and reported the harassment multiple times. (Dkt. No. 7, at 6). Accordingly, Defendant’s motion to dismiss is denied as to Plaintiff’s sex-based hostile work environment claim.
The court further held that plaintiff likewise sufficiently alleged a claim for retaliation, but dismissed plaintiff’s claims of hostile work environment based on disability and national origin.